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printed from 

Annals of the American Academy of 
Political and Social Science, 
April, 1891. 


















The Genesis of a Written 
Constitution. 




BY 


WILLIAM C. MOREY. 




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THE GENESIS OF A WRITTEN CONSTITUTION. 


The admirers of the British Constitution are accustomed 
to call attention to what they regard as its two great merits, 
its permanence and its pliability. And these superior merits 
are often attributed to the fact that it is an unwritten con¬ 
stitution. Resting upon immemorial custom, it is closely 
related to the life and thought of the people, it has ex¬ 
panded with the growth of society, and therefore reflects 
the permanence and progress of the nation. 

It cannot be doubted that the close affiliation existing 
between the organic law and the historical life of any 
country is the one fundamental condition which insures 
the endurance and flexibility of that law. Indeed, the 
constitution can hardly be regarded in any proper sense 
as the organic law, unless it be a true expression of the 
organic life of a people. No unbiased student of political 
history is disposed to ignore the great merits which are 
35 ( 529 ) 


530 Annals of the American Academy. 

attributed to the English Constitution, due to the fact that 
it is the result of growth, and not of manufacture. The 
history of the fiat-constitutions of France illustrates the 
pitiful failures of organic law made to order; and the 
unhappy experiences of the many South American re¬ 
publics, whose constitutions have been patterned after 
that of the United States, show that a successful form of 
government cannot be introduced into a country by mere 
importation, especially if it find no support in the political 
habits and character of the people. 

Admitting that the permanence of a constitution is 
dependent upon the laws of historical growth, that no 
political forms created to meet a temporary emergency 
or framed by a mere act of arbitrary volition are likely to 
endure, it becomes an interesting question to an American 
citizen whether the laws of historical development apply 
only to an unwritten constitution. The organic law under 
which he lives is set forth in a written document. It was 
put into form at a given time and place. It was fashioned 
in the heat of discussion by a chosen body of men, whose 
work in its outlines and its details he is accustomed to 
think was solely the product of their creative wisdom. This 
idea was formerly so prevalent that the apotheosis of the 
Fathers occupies a large place in American political litera¬ 
ture ; and this view is not confined to native writers. The 
flattering sentiment of Mr. Gladstone has often been quoted, 
“As the British Constitution is the most subtile organism 
which • has proceeded from progressive history, so the 
American Constitution is the most wonderful work ever 
struck off at a given time by the brain and purpose of 
man.” And this quotation is approvingly used by Mr. 
Bancroft as a sort of dedicatory preface of his History of the 
Constitution . The German writer, von Holst, with greater 
historical insight, is inclined to satirize the worship of the 
Constitution and the Fathers, but the scope of his own 
work does not permit him to discuss the real origin of 
American constitutional law. It may, indeed, perhaps 

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The Genesis of a Written Constitution. 531 

be a question whether the more recent views regarding the 
growth of the Constitution need destroy our veneration for 
this document, or detract from our esteem of those who 
gathered the materials of which it is composed. We may 
see that there were abundant reasons why, from the earliest 
history of our country, Americans have been led to attri¬ 
bute a kind of sanctity to the written documents by which 
only their rights could be secured. We may also see 
that the framers of the Constitution, though they created 
scarcely any new political forms, yet used the forms 
already existing to meet the needs of an expanding na¬ 
tional life. 

The crude notion to which reference has been made, that 
the frame of government embodied in the Federal Consti¬ 
tution was struck off at a given time by the brain and 
purpose of a particular set of men—a notion once common 
enough—has now scarcely any advocates among those who 
have ventured to investigate its sources. In the place of 
this notion, however, there has been substituted by certain 
writers a somewhat more historical view—a view which, 
no doubt, bears some marks of reason and plausibility. It 
is said that the Federal Constitution was modelled directly 
after the English Constitution: it was an adjustment of 
English forms to American wants. The American presi¬ 
dent is the English monarch made elective. The American 
Senate is the House of Lords shorn of its aristocratic 
privileges. The House of Representatives is a translation 
of the House of Commons. The members of the conven¬ 
tion of 1787 were themselves, in great part Englishmen, 
and it was but natural that they should, in forming a new 
government, make a direct copy, so far as the circumstances 
would permit, of the existing constitution of the mother 
country. A recent English writer says, “ The American 
constitution of 1789 was a faithful copy, so far as it was 
possible to make one out of the materials at hand, of the 
contemporary constitution of England.” 1 If this English 


1 Encyclopedia Britannica, 9th ed., Art. “ Constitution.” 


532 


Annals of the American Academy. 


writer had taken the trouble to study the previous govern¬ 
ments of the different states,'all of which had written con¬ 
stitutions several years before the Federal Convention was 
called, he might have been surprised to find that each of 
these constitutions might just as well be considered a 
faithful copy of the contemporary constitution of Eng¬ 
land. The presidents and governors of the states, the 
state senates and legislative councils, the houses of repre¬ 
sentatives and deputies, might with the same .aptness be 
regarded as imitations of the English King, Lords, and 
Commons. If he had gone still further and examined the 
governments of the several colonies, all of which, from 
the earliest times, were supported by written legal docu¬ 
ments, he might have seen in each of them also quite 
as faithful a copy of the contemporary constitution of 
England. The fact is, that the adaptation of the political 
institutions of England to the wants of the English people 
in America did not begin at the close of the eighteenth 
century and with the work of the convention of 1787. It 
began nearly two hundred years before with the earliest 
migration of Englishmen to American shores, and con¬ 
tinued through all the succession of political vicissitudes 
in which the American colonists saw that their persons 
and property could be protected only by appealing to the 
constitutional rights of Englishmen. Indeed, the perpetual 
influence of English institutions is one of the marked 
features in the growth of the American nation. But it 
must be observed that the direct influence of the English 
Constitution, even in the colonial period, is seen not so 
much in the frame of government which came to be 
adopted^ as in the legal guarantees by which the colo¬ 
nists sought to be fortified in their right to be tried by the 
forms of the common law, and to be protected from the 
arbitrary conduct of their governors, when these governors 
were not of their own appointment. These statements 
are, perhaps, sufficient for the present to show that the 
American constitution of 1787 was not a mere copy of the 



The Genesis of a Written Constitution. 533 

contemporary constitution of England. So far as it pos¬ 
sesses elements of English origin, it derived these elements 
not from the contemporary institutions of Great Britain, 
but from the antecedent institutions of the states and col¬ 
onies, in which in the long process of time these English 
elements had already become adjusted to American needs 
and conditions. In other words, the American constitu¬ 
tion is not a codification of the customary constitutional 
law of England. Although its roots may reach far back 
into English and Anglo-Saxon soil, it has a distinctive 
character of its own, and a distinctive history of its own. 

In order to prepare the way still further for the propo¬ 
sition to be set forth in this article, it is necessary to say 
that the Federal Constitution is not only not a fiat-consti¬ 
tution projected from the brain of the Fathers, nor a copy 
of the contemporary constitution of England; it is also 
not founded upon any previous body of institutions which 
existed merely in the form of customs. As it is itself 
primarily a body of written law, so it is based upon suc¬ 
cessive strata of written constitutional law. One of the 
most distinctive and marked features of American con¬ 
stitutional history is the fact that the political institutions 
of this country have grown up within what may be called 
the “ area of written law.” The general outlines of the 
frame of American governments and the general guaran¬ 
tees of civil and political liberty have been defined almost 
invariably by express statutory enactments; and these 
have usually taken the form, not of isolated and fragmen¬ 
tary acts, but of single written documents. The emphasis 
which is here given to the written character of the Ameri¬ 
can constitutions is made with full appreciation of the 
statements set forth by certain writers regarding what 
has been called the unwritten Constitution of the United 
States, in which reference is made to such facts as the 
decay of the electoral college, the changes of the law 
through judicial interpretation, etc. But it may be a ques¬ 
tion whether the modified use of a legal form itself estab- 


534 Annals of the American Academy. 

lished by express enactment, or any new interpretation 
of the meaning of a legal enactment can properly come 
within the definition of “ unwritten law,” as that term is 
used either by the civil or by the common lawyers. With¬ 
out, however, quibbling about the definition of a phrase, 
the fact remains that the Constitution of the United States 
is primarily a written constitution; and the proposition 
which I wish to illustrate is that the general frame of 
government established by the Constitution and the gen¬ 
eral guarantee of rights contained in it, are themselves the 
result of historical growth through a series of written con¬ 
stitutions. The phrase “ written constitution ” is here used 
to denote any positive organic law, or body of statutory 
provisions established by a competent political authority 
defining the powers and branches of government and 
securing the political and civil rights of the subject. 

Only one American writer and one English writer, so 
far as I am aware, have furnished the clue by which to trace 
what I conceive to be the true genesis of the Federal Con¬ 
stitution of the United States. The late Prof. Alexander 
Johnston showed by an abundance of material how nearly 
all the elements of the Federal Constitution were derived 
from the existing written constitutions of the states; 1 and 
Prof. Bryce, in a single sentence of his American Common¬ 
wealth, has indicated the true origin of the written consti¬ 
tutions of the states themselves. He says: “The State 
Constitutions are the oldest things in the political history 
of America, for they are the continuations and repre¬ 
sentations of the royal colonial charters, whereby the 
earliest English settlements in America were created, and 
under which their earliest local governments were estab¬ 
lished.” He illustrates this statement by a reference to 

1 New Princeton Review, September, 1887. Since the present article was 
written, there has appeared in this journal (October, 1890) a paper entitled, 
“ The Original and Derived Features of the Constitution,” by James Harvey 
Robinson, setting forth in a clear manner the indebtedness of the Federal Con¬ 
stitution to the state constitutions. 


The Genesis of a Written Constitution. 535 

the history of the Massachusetts charter. 1 The statements 
of these two writers suggest the proper steps to be fol¬ 
lowed in tracing the historical growth of American con¬ 
stitutional law. To describe in full this line of development, 
it would be necessary to consider^jjfirst, how the charters 
of the colonial trading companies furnished the type of 
the written constitutions of the colonies; secondly, how 
the written constitutions of the colonies were transformed 
into the written constitutions of the thirteen original 
states; and, thirdly, how the written constitutions of the 
states contributed to the written constitution of the Fed¬ 
eral Union. It is the first of these steps only which I 
shall be able to illustrate as fully as I desire in this article. 
In other words, I wish to show how the forms of govern¬ 
ment established by royal charters for the English trading 
companies furnished the type upon which the original 
colonial constitutions were framed, and also how these 
constitutions came to be embodied in written law. 

As a part of the general colonizing movement which 
characterized the history of Western Europe during the 
sixteenth and seventeenth centuries, and as a result of the 
repeated failures of individual adventurers, who, under the 
authority of letters-patent, had attempted to make settle¬ 
ments in the newly-discovered lands, it became the settled 
policy of the colonizing nations—especially France, Hol¬ 
land, Sweden, and England—to incorporate trading com¬ 
panies with capital and powers sufficient to carry on with 
greater prospect of success commercial enterprises. It 
would carry us too far from our subject to trace, or more 
than to suggest, the relation of these companies to the 
previous trade corporations and chartered guilds of the 
Middle Ages. The point that concerns us here is the 
nature of the constitution, or organic law, of these com¬ 
panies as established by their written charters. 

The English East India Company may be taken as 


1 American Commonwealth, I. 413-415. 


536 Annals of the American Academy. 

furnishing the best general type of the organic law of 
these bodies. This company was chartered by Queen 
Elizabeth on the 31st of December, 1600, “to be,” in the 
words of the charter, “ one body politic and corporate, by 
the name of the Governor and Company of Merchants of 
London trading to the East Indies .” The organization of the 
company, as defined by the terms of the charter, was as 
follows: It was to have a governor, a deputy-governor, 
and a committee or council of twenty-four persons. The 
first governor was designated in the charter. The subse¬ 
quent governor and all the other officers were to be chosen 
in a general court or assembly of the whole company. 
Every member, before being admitted, was required to 
take an oath “to traffic as a freeman of the company.” 
The governor, or, in his stead, the deputy-governor, was 
required to preside over the general assembly, which con¬ 
sisted of the governor, the council, and the members of 
the corporation sitting as one body. This assembly was 
authorized “ to make all reasonable laws, constitutions, 
etc., agreeable to the laws of England, for their good 
government, by a plurality of voices ”; and also “ to 
punish by fines and imprisonment the offenders against 
these laws.” 1 The company was, in short, a body-politic, 
democratic in its organization, exercising its functions 
through a governor and deputy, a council, and an assem¬ 
bly of all the members of the corporation. These branches 
of government might, by a stretch of fancy, be supposed 
to be patterned after the English King, Lords, and Com¬ 
mons. But it might easily be shown that this form of 
corporate organization reaches back in England, and also 
on the Continent, to a time long before the English House 
of Commons was formed. 

The franchise of the East India Company was, of course, 
restricted to the trade with the Asiatic coasts. The whole 
American coast had at this time no permanent English 


1 Anderson’s Origin of Commerce, II. 196. (Lond., 1787.) 


The Genesis of a Written Constitution. 537 

settlement. For the purpose of bringing this country- 
under the commercial dominion of England, James I., in 
1606, granted the first charter of Virginia. This charter, 
with its subsequent modifications, may be said to form the 
beginning of the constitutional history of the United States. 
It was born amid the fierce struggle then going on between 
the king, who was claiming his divine right, and the peo¬ 
ple, who were claiming their constitutional privileges; and 
the history of this charter bears the plain marks of this 
struggle. King James, in his blind devotion to his auto¬ 
cratic theory, attempted at first to limit the right of self- 
government, which had usually been bestowed upon a 
corporation, and to keep in his own hands the full control 
of the new colonies about to be established in America. 
Hence, we find the first charter of Virginia entirely di¬ 
vested of the democratic features which characterized the 
normal type of the corporation as embodied in the East 
India charter. 

The significant features of the first Virginia charter, 
granted in 1606, will be evident from the following brief 
description: It divided the whole American coast to 
which the English laid claim into two parts, which were 
respectively granted to two related companies—the south¬ 
ern part being conferred upon what was called the first, or 
London Company, and the northern part upon the second, 
or Plymouth Company. This division was the origin of 
the separate history of the Southern and the New England 
colonies. Each colony was to be governed by a local 
council resident in the colony, appointed 1 and removable 
by the king, and to govern according to royal instruc¬ 
tions. These local councils, in turn, were to be subject to 
a superior council resident in England, also appointed by 
the king and under royal instructions. Notwithstanding 


1 Historians are not agreed as to the mode of appointment. The words of the 
charter are: “ Each of which councils shall consist of thirteen persons to be or¬ 
dained, made, and removed from time to time, according as shall be directed and 
comprised in the same [royal] instructions.” 


538 Annals of the American Academy. 

these autocratic features, it is worthy of note that this first 
American charter contains a general guarantee of civil 
rights, which the colonists ever after claimed as their 
legitimate heritage. It explicitly provided “that each 
and every the persons being our subjects, which shall 
dwell and inhabit within every and any of the said col¬ 
onies and plantations, and every of their children which 
happen to be born in any of the limits and precincts of the 
several colonies and plantations, shall have and enjoy all 
liberties, franchises, and immunities within any of our other 
dominions as if they had been abiding and born in this 
our realm of England.” 1 With this charter as a starting- 
point, we may trace the two diverging lines of develop¬ 
ment which mark the constitutional genesis of Virginia 
and the Southern colonies on the one hand, and that of 
Massachusetts and the New England colonies on the 
other. 

The history of the Southern colonies, and of Virginia 
in particular, begins with the operations of the London 
Company under this grant. The grant contained, as has 
been said, no democratic features, and furnished no basis 
for any political organization among the colonists them¬ 
selves, who were governed by the local council appointed 
by the king. The threatened failure of the little settlement 
at Jamestown under this regime, led in 1609 to a revision 
of the charter by the king, whereby the London Company 
received a distinct corporate name as the Treasurer and 
Company of Adventurers and Planters of the City of London 
for the First Colony of Virginia. Its powers were made 
more ample, and its constitution contained some conces¬ 
sions of a democratic stamp. It was organized under a 
council, together with a treasurer who was to act as the 
chief executive officer of the company. The first treasurer 
and council were named in the charter, which provided, 
however, that all vacancies should be supplied “ out of the 


1 For the charter, cf. Poore's Charters and Constitutions, II. 1888. 


The Genesis of a Written Constitution. 539 

company of said adventurers by the voice of the greater 
part of said company of adventurers, in their assembly for 
that purpose.” The council, presided over by the treas¬ 
urer or his deputy, was to appoint all officers, “ to make, 
order, and establish all manner of laws, directions, in¬ 
structions, forms, and ceremonies of government and 
magistracy, fit and necessary for and concerning the 
government of the said colony and plantation.” By this 
second charter the company acquired the distinct character 
of a body-politic, with administrative and legislative func¬ 
tions in the hands of the council and treasurer, and elective 
functions in the hands of the assembly. But the rights of 
self-government, which the king by this charter yielded to 
the company, the company in its turn did not yield to the 
colonists. The local council, which had been established 
by the previous charter, was superseded by a single gov¬ 
ernor, appointed by the company, who was given exclusive 
supervision of local affairs. 1 

The second charter, just described, is chiefly significant 
as a step leading to the third and most important charter 
of Virginia, granted in 1612. The granting of this charter 
illustrates the growing influence of the popular movement 
in England against the autocratic policy of James I. It 
seems to be an advance upon any previous grant bestowed 
by that misguided monarch; but it was, in fact, merely a 
restoration of the normal democratic features of the cor¬ 
poration, such as were already embodied in the constitution 
of the East India Company, and were derived from the 
traditional rights of self-government possessed by char¬ 
tered companies from the earliest times. The written 
constitution granted to the London Company by the 
charter of 1612, is so important in its bearing upon the 
early political history of Virginia and the other colonies, 
that I shall indicate its provisions as nearly as possible in 
the words of the charter itself. After providing for a 


For the charter, cf. Poore's Charters and Constitutions, II. 1893. 


540 Annals of the American Academy. 

council of twenty-four persons (of which the chief execu¬ 
tive or his deputy shall be the presiding member), it de¬ 
clares that the council shall be “a sufficient court of the 
said company for the handling, ordering, and dispatching 
of such causes and particular occurrences and accidental 
matters of less consequence and weight as shall from time 
to time happen touching and concerning the said planta¬ 
tion ; and that, nevertheless, for the handling, ordering, 
and disposing of matters and affairs of greater weight and 
importance, and such as shall or may, in any sort, concern 
the weal public, and general good of said company and 
plantation, as namely, the manner of government from 
time to time to be used, the ordering and disposing of the 
land and possessions, and the settling and establishing a 
trade there, or such like, there shall be held and kept 
every year upon the last Wednesday save one of Hillary 
term, Easter, Trinity, and Michaelmas terms, forever, one 
great, general and solemn assembly, which four assemblies 
shall be called The Four Great and General Courts of the 
Council and Company of Adventurers of Virginia .” This 
assembly, thus composed of the executive, the council, and 
members of the company, sitting as one body, was author¬ 
ized “ to elect and choose discreet persons to be of our 
said council for the first colony of Virginia, and to nomi¬ 
nate and appoint such officers as they shall think fit and 
requisite for the government, ordering, and dispatching of 
the affairs of said company; ” also “ to ordain and make 
such laws and ordinances for the good and welfare of the 
said plantation as to them from time to time shall be 
thought requisite and meet; so, also, as the same shall 
not be contrary to the laws and statutes of this our realm 
of England.” Power was also given to the assembly to 
admit persons to the freedom of the corporation. Certain 
judicial powers were also given to the chief executive and 
the council. After an enumeration of the commercial rights 
granted to the company, the charter closes with a con¬ 
firmation of all previous liberties and franchises conferred 


The Genesis of a Written Constitution. 541 

upon the inhabitants of the colony. This third charter of 
Virginia thus erected the London Trading Company into 
a body-politic, democratic in its organization, with powers 
vested in a chief executive, a council, and an assembly, 
having full authority to legislate and to establish a form 
of government for the colony confided to its care. 1 

The charter just described possessed all the essential 
elements of a written constitution. It established a frame 
of government and distributed executive, judicial, and 
legislative functions. It was, however, merely the con¬ 
stitution of an English trading company. It is necessary 
to show how this corporate constitution furnished the type 
of the colonial constitution of Virginia. The kind of 
privileges which the company had now obtained from the 
king, and which served to give new life and hope to their 
own members, the company were not slow to perceive 
might afford similar benefits to the struggling colonists, 
with whose interests their own were closely allied. They 
had themselves learned the repressive effects of an auto¬ 
cratic policy. Their own colonists were now under the 
control of a single governor, who exercised an almost 
military power, and whose arbitrary rule occasioned many 
complaints on the part of his subjects. The exceptional 
tyranny of one Argali induced the company to establish 
in the colony a council, which like their own council should 
act as an advisory body to the governor. But the chief 
step which gave to the colonial government the same 
general form as that possessed by the company was due 
to the instructions given to Governor Yeardley to call a 
general assembly of the colonists that they might have 
a share in the legislation of the colony and be given an 
opportunity to make petitions to the company. As the 
colonists were now scattered over eleven plantations, the 
inconvenience of their meeting together in one place led 
to the adoption of the plan whereby they should appear 


1 Poore’s Charters and Constitutions, II. 1902. 


542 Annals of the American Academy. 

by deputies. All the freemen shared in this first elec¬ 
tion of deputies, and two burgesses were returned from 
each plantation. Thus was constituted at Jamestown, in 
1619, the first representative assembly that ever met on 
American soil. 

In order to give a definite and written sanction to the 
political changes which had thus been introduced, the 
London Company issued the famous ordinance of 1621, 
which contained a clear definition of the powers and 
branches of the colonial government. All political 
authority within the colony was vested in a governor 
and a council of assistants (appointed by the company), 
and a body of burgesses composed of two delegates from 
each plantation—the whole to constitute the general 
assembly of the colony for the purposes of legislation. 
At first the governor, the council, and representatives, 
after the fashion of the company’s government, met 
together in a single body. This assembly was em¬ 
powered to consult regarding the public weal and to 
enact general laws. But in order to preserve the su¬ 
perior control of the company, a negative voice was re¬ 
served to the governor, and no enactment of the assembly 
was to be of force unless ratified by the general court 
of the company in England. On the other hand, it was 
generously provided that no order of the general court 
was to bind the colony unless assented to by its assembly. 
After the pattern of the company’s government, the gov¬ 
ernor and council in the colony were empowered to act 
as a court of justice and to hold quarterly sessions. The 
common law of England was considered to be in force in 
the colony, and trial by jury was assured. This important 
enactment, bearing the date of 1621, was the first written 
constitution granted to an American colony, and was ever 
afterward regarded by the colonists of Virginia as the legal 
foundation of their political rights. 

It will be seen that all the essential features of this con¬ 
stitution were a reproduction of the constitution of the 


The Genesis of a Written Constitution. 543 

London Company and of its prototype, the East India 
Company, namely: (1) The three elements of the gov¬ 
ernment—the chief executive, the council, and the assem¬ 
bly; (2) the administrative and judicial functions of the 
governor and council; and (3) the legislative functions of 
the governor, council, and freemen united in a single body. 
The only important modifications—namely, the introduc¬ 
tion of deputies and the granting of the veto power to the 
governor—were clearly the direct result of the peculiar 
circumstances in which the colony was placed; the one 
due simply to convenience, and the other to the desire on 
the part of the company to preserve as far as possible its 
control over the legal acts of the colony. Some historians 
are strangely inclined to regard the Virginia constitution 
of 1621 as consciously modelled after that of the English 
government. The difficulties of this view are: first, the 
fact that its resemblances to the English government are 
extremely remote, while its resemblances to the govern¬ 
ment of the company are extremely close; and, secondly 
and chiefly, the fact that the steps of its formation show 
that the colony was regarded as an offshoot of the com¬ 
pany, with common interests, and could be most efficiently 
organized by having transferred to it similar political powers 
and privileges. With a more just appreciation of the facts 
in the case, Mr. Chalmers, after mentioning the provisions 
of the ordinance, says: “ Thus we trace to a commercial 
company those free systems of provincial government that 
have distinguished the English colonies above all others for 
their regard for the rights of men. In this famous ordi¬ 
nance,” he continues, “ we behold the model from which 
every future provincial form was copied, though varied by 
difference of circumstance,” 1 

This account of the origin of the Virginia constitution 
has been given in some detail because it furnishes the first 

1 Chalmer’s Intro, to the Hist, of the American Colonies, I. 16, 17. This 
ordinance is found in Stith’s Virginia, Appendix No. 15, and in Hazard’s Coll., 
I. I33-I3S* 


544 Annals of the American Academy. 

example of an American government constituted by writ¬ 
ten law, and because its early history is necessarily some¬ 
what complicated on account of the successive changes 
made in the charter of the London Company. The gen¬ 
eral frame of government established by the ordinance of 
1621 continued throughout the subsequent history of the 
colony. It was not overthrown at the dissolution of the 
London Company in 1624. When Virginia was changed 
into a royal colony the general supervision which had 
been exercised by the company was assumed by the king; 
but the governmental forms remained substantially the 
same, although modified in detail sometimes by royal 
instructions, but generally by the legislation of the people 
themselves. 

Virginia may properly be regarded as the parent of the 
other colonies of the South. Upon the territory granted 
to the London Company were afterward erected the colo¬ 
nies of Maryland and the Carolinas; and the form of 
government sanctioned by the ordinance of 1621 became 
the type upon which that of the other colonies was mod¬ 
elled. While the colony of Virginia grew up under the 
charter granted to a trading company, and its constitution 
was defined by an ordinance of that company, the other 
southern colonies grew up under charters granted to pro¬ 
prietors, and their constitutions were established by the 
ordinances of these proprietors, or by popular legisla¬ 
tion. The point to be emphasized here is the fact that the 
constitution of the proprietary colonies, notwithstanding 
their different sources, became assimilated in form to that 
of Virginia, and in a similar way became sanctioned by 
written law. 

The growth of written constitutions under proprietary 
grants may be illustrated from the history of Maryland, 
the first colony to be erected under such a grant. The 
basis of all political power and privilege in the colony 
was, of course, the royal charter granted to Lord Balti¬ 
more in 1632. The charter made the grantee and his 



The Genesis of a Written Constitution. 545 

heirs “ true and absolute lords and proprietors ” of the 
province, with all the rights pertaining to a count pala¬ 
tine. With reference to the power of legislation the 
charter granted to the proprietor “ the full, free, and 
absolute power .... to ordain, make, and enact 
laws, of what kind soever, according to their sound dis¬ 
cretions, whether relating to the public state of said prov¬ 
ince, or to the private utility of individuals, of and with 
the advice, assent, and approbation of the freemen of the 
same province, or of the greater part of them, or of their 
deputies or delegates, whom we will shall be called to¬ 
gether for the framing of laws, when and as often as need 
shall require.” It also authorized the appointment of all 
necessary officers and the constitution of all necessary 
courts, without, however, designating the name or num¬ 
ber either of the officers or of the courts. Supplementary 
to the general powers of legislation just referred to, the 
charter empowered the proprietor to issue ordinances in 
times of emergency when.the freemen could not be called 
together. 1 

The first constitution of the colonial government under 
this charter was framed by the ordinance issued by the 
proprietor in 1637, whereby the political organization of 
Maryland became closely modelled after that of Virginia. 
It comprised a governor (under the name of lieutenant- 
general), a council, and an assembly. The chief execu¬ 
tive power, civil and military, was vested in the governor. 
The judicial power was granted to the governor and his 
council, and the ultimate power of legislation was recog¬ 
nized as belonging to the assembly of freemen, or their 
deputies. 2 

The more specific definition of the branches and powers 
of the government, and of the civil rights of the subject, 
was made by a body of constitutional enactments passed 

1 For this charter, cf. Poore’s Charters, I. 8n; a translation will be found in 
Bozman’s History of Maryland, II. 9. 

2 This ordinance is given entire in Bozman, II.; App. note 6. 

36 



546 Annals of the American Academy. 

by the assembly of 1639. Previous to this time two assem¬ 
blies had met, but they were occupied chiefly in a dispute 
with the governor as to the right of initiating legislation, 
which right was finally conceded to the assembly. The 
legislation of 1639 gave a definite form to the colonial 
constitution of Maryland. 1 To enumerate briefly its chief 
provisions, it secured the rights of the holy church; the 
supremacy of the king by requiring an oath of allegiance ; 
the territorial rights of the lord proprietor; the rights and 
liberties of the inhabitants according to the great charter of 
England; the regulation of the judiciary; the probate of 
wills; the military defence of the province; and the defi¬ 
nite organization of the assembly. The organization of 
the early assemblies of Maryland affords a good illustra¬ 
tion of the way in which a primary assembly is sometimes 
changed into a representative body. The original charter 
granted a share in legislation to the freemen, or to the 
greater part of them, or to their deputies—with no indi¬ 
cation as to which method was to be preferred. The 
problem was left to be worked out by the colonists them¬ 
selves. It is said that the first assembly was made up of 
all the freemen, which was possible on account of the small 
area then settled. The second assembly was composed 
not only of freemen sitting in their own right, but also of 
proxies who appeared for absent freemen; and the same 
person might appear both for himself and as a proxy for 
others. We, consequently, find in this second assembly 
different persons having a different number of votes—the 
number varying from four to fifty-six. The inexpediency 
of this method led to the definite organization of the assem¬ 
bly by the legislation of 1639 just referred to. Each hun¬ 
dred (St. Mary’s, St. Michael’s, St. George’s and Concep¬ 
tion alias Mattapanient) was required to send one or two 
burgesses to sit with the governor and the council, who 
together constituted the general assembly of the prov- 

1 Bozman, II. ch. 2, and App., note 21; Assembly Proceedings of Maryland 
from 1637 to 1658, p. 129 ; Bacon’s Laws of Maryland, under 1638-9. 




The Genesis of a Written Constitution. 547 

ince. In this way the colony of Maryland speedily 
reached the same form which Virginia, on account of 
the scattered condition of her population, had found it 
convenient to introduce into her first assembly. In their 
early history these two colonies were intimately connected 
with each other, and Bozman says, “ The customs of Vir¬ 
ginia were closely copied by the colonists of Maryland.” 1 

These few statements must suffice to show how the 
constitution of Maryland became assimilated to that of 
Virginia, but especially how this constitution was estab¬ 
lished by a succession of written laws, namely: (1) The 
original charter of the proprietor granted in 1632; (2) 
the ordinance of 1637; and (3) the constitutional legis¬ 
lation of 1639. This constitution remained substantially 
the constitution of Maryland during the whole colonial 
period. In its expansion it, of course, took on supple¬ 
mentary provisions, sometimes suggested by the colonists 
themselves, sometimes borrowed from their neighbors in 
Virginia, and sometimes adapted from the customs of 
England, the latter adaptations relating for the most part 
to the use of the common law injudicial proceedings. 

The constitutional development of the other colonies in 
the South followed, in the main, the same method of 
growth as that described with reference to Maryland. The 
only point of interest that need be mentioned here is the 
effort which was made on the part of the proprietors of 
Carolina to introduce into that province that elaborate 
piece of legislative ingenuity called the “ Fundamental 
Constitutions,” drawn up by the English philosopher, John 
Locke. 2 This is one of the most instructive examples 
which history affords of what may be called a fiat-con¬ 
stitution. It was devised by a great and good man; but 
it was evidently made with little knowledge of the actual 
condition of the colony and with no reference to its prac- 

1 Bozman, I. 49. 

2 Poore’s Charters, II. 1397. This document contains one hundred and twenty- 
enumerated provisions. 


548 Annals of the American Academy. 

tical needs. It was created out of nothing, and it soon 
relapsed into nothing. After a feeble attempt on the part 
of the proprietors to palm off upon the colonists this 
device of their philosophical friend, there was established 
in its place a simple form of government, with a governor, 
council, and assembly, similar to that which their neigh¬ 
bors in Virginia and Maryland had found suited to their 
circumstances. 

These illustrations are, doubtless, sufficient to show that 
the form of government which prevailed in the southern 
colonies was modelled after that of the parent colony of 
Virginia, which, in turn, was derived from the form of 
government established by royal charter for the London 
Trading Company; and also that the constitutions of the 
southern colonies came into being, not as the result of 
mere custom, but as the product of statutory legislation. 

As we turn to New England we shall see that the typical 
government of the Northern colonies was not patterned 
after that of a trading company. It was itself the govern¬ 
ment of a trading company. In the case of Virginia, the 
company sent out the colony and established a govern¬ 
ment over it. In the case of Massachusetts, the company 
became the colony, and brought its government with it. 
To coordinate properly the colonial constitutions of New 
England with those of the South, we must go back to the 
general charter of 1606, that is, the first charter of Vir¬ 
ginia, which provided for the colonization of both sections, 
and constituted precisely the same form of local government 
for each. Circumstances similar to those which led in the 
South to the second charter of Virginia and the incor- * 
poration of the London Company as a distinct body- 
politic with enlarged powers, also led in New England 
to the granting of a second charter, namely, that of 1620, 
whereby the Plymouth Company was organized as a dis¬ 
tinct corporation with similarly enlarged powers. 1 This 


1 Poore’s Charters, I. 921. 



The Genesis of a Written Constitution. 549 

second Plymouth Company, which is known as the 
“ Council of Plymouth for New England,” did very little 
in the actual work of colonization, but was profuse in sub¬ 
granting its territory to any who might desire it. The 
coast bordering upon Massachusetts Bay was granted by 
the Council of Plymouth to an unincorporated body of Eng¬ 
lish Puritans, who, after some feeble attempts at settlement, 
soon desired their title confirmed and their body erected 
into a distinct corporation by a direct grant from the king. 
This led in 1628 to the granting of a new charter, whereby 
the “ Governor and Company of Massachusetts Bay in New 
England ” became a body-politic and corporate. 

The Massachusetts charter, which was the third royal 
charter for New England, corresponds precisely to the 
third charter of Virginia, granted in i6u,and the gov¬ 
ernment constituted for the company was in all essential 
respects the same in both. The Massachusetts charter 
creates a frame of government, consisting of “ one gover¬ 
nor, a deputy-governor, and eighteen assistants of the same 
company, to be from time to time constituted, elected, and 
chosen out of the freemen of said company.” It also pro¬ 
vides, in almost the same language as that of the third 
Virginia charter, for the holding of “ four great and general 
courts of the company” each year. It furthermore declares 
that, in the general court, “ the governor or deputy-gover¬ 
nor, and such of the assistants and freemen of the company 
as shall be present, shall have full power and authority to 
choose other persons to be free of the company, and to 
elect and constitute such officers as they shall think fit for 
managing the affairs of said governor and company, and to 
make laws and ordinances for the good and welfare of the 
said company, and for the government and ordering of said 
lands and plantation, and the people inhabiting or to inhabit 
the same, so as such laws and ordinances be not repug¬ 
nant to the laws and statutes of this our realm of Eng¬ 
land.” 1 


1 Massachusetts Records, Vol. 1. 3 ; also Poore’s Charters, I. 932. 


550 


Annals of the American Academy. 


The constitution of the Massachusetts Bay Company 
was thus substantially identical with that of the London 
Company under its third charter, and, consequently, the 
same form of government became the political type for the 
colonies, both in the South and in New England. The 
London Company, it is true, had remained in England, 
and had organized a colonial government in Virginia 
similar to its own. The Massachusetts Bay Company, on the 
other hand, elected officers from those persons who were 
willing to emigrate to America, and the officers and all the 
members of the company who were able were transported, 
with their charter, to the shores of New England. What 
was originally organized as an English trading company 
thus became an American colony, with its constitution and 
government unchanged. The charter of 1628 remained the 
colonial constitution of Massachusetts until 1691, when it 
was superseded by a new royal charter, which, however, con¬ 
firmed the previous frame of government in all its essential 
points, with the exception that the governor was now to 
be appointed by the crown. 1 It should also be noticed that 
by this charter of 1691 the colony of pilgrims at Plymouth, 
Massachusetts, who had developed an independent gov¬ 
ernment of their own, without any royal sanction, was 
united to Massachusetts Bay, and became incorporated 
into the same political organization. 

The other constitutions of New England, the origin of 
which needs to be briefly noticed, are those of Connecticut 
and Rhode Island. New Hampshire was so closely related 
to Massachusetts during the colonial period that it requires 
no special mention in this rapid review. The origin of the 
Connecticut colony was due to the migration of a few of 
the freemen of Massachusetts to the Connecticut River, 
where they formed the settlements of Windsor, Hartford, 
and Wethersfield. Being freemen of Massachusetts, they 
were at first regarded as under the jurisdiction of that 


1 Poore’s Charters, I. 942. 




The Genesis of a Written Constitution. 551 

colony, and were governed by commissioners appointed 
by the Massachusetts court, which commissioners were 
given administrative and judicial powers, and were author¬ 
ized, if occasion required, to call a court of all the inhabi¬ 
tants of the Connecticut towns, 1 The failure to renew this 
commission after the first year compelled the neglected 
colonists to govern themselves, which they did by calling 
in their own name a court of all the inhabitants. In order 
to give a definite form to the independent government 
which they were thus compelled to assume, they enacted 
in their general court in 1639, what was called the “ Funda¬ 
mental Orders,” which constituted a frame of government, 
in all essential respects, similar to that which they had left 
behind them in Massachusetts, with its governor, council 
of magistrates, and general court, having functions similar 
to those of the corresponding branches in the parent col¬ 
ony. 2 This enactment of the Connecticut colonists has been 
extolled as “the first example in history of a written con¬ 
stitution—an organic law constituting a government and 
defining its powers.” 3 Mr. Bryce calls it “ the oldest truly 
political constitution in America.” 4 It was, no doubt, the 
first written constitution which was enacted by the inde¬ 
pendent authority of the people. The form of government, 
however, which it constituted was simply a reproduction 
of that of the Massachusetts Bay Company sanctioned by 
the charter of 1628. Whether the independent authority 
exercised by the Connecticut colonists was alone sufficient 
to constitute a legal government was to them, at least, a 
matter of question. Aware of the doubtful nature of their 
title to exercise sovereignty, the colonists appealed to the 
king, and in 1662 received a royal charter, which erected 
the colony into a corporate company, with powers and 
privileges similar to those already given the Massachusetts 


1 For the commission, cf. Massachusetts Records, I. 170. 

2 Poore’s Charters, I. 249. 

3 Bacon’s Constitutional History of Connecticut, 5, 6. 

4 American Commonwealth, I. 414, note. 



552 Annals of the American Academy. 

Bay Company. 1 The phraseology of this charter through¬ 
out is almost precisely the same as that employed in the 
Massachusetts charter of 1628, which was intended to 
confer a commercial and political franchise upon a trading 
company. Judged from the technical phraseology of the 
charter, the colony of Connecticut, like that of Massachu¬ 
setts, was viewed strictly in the light of a trading company. 
In the case of Massachusetts the company was erected 
upon British soil and transported to New England; in the 
case of Connecticut the company was erected in the first 
instance upon New England soil. By the charter of 1662, 
it should also be noticed, the colony of New Haven, after 
maintaining a feeble existence under a voluntary govern¬ 
ment, became united to that of Connecticut, and became 
organized under the same political constitution. 

The description which has been given regarding the 
origin of governmental forms in Connecticut applies, with 
few modifications, to Rhode Island. Rhode Island, like 
Connecticut, was a double colony. Its two constituent 
parts were at first organized by voluntary associations of 
the settlers, and finally united under the charter of 1663. 2 
With the exception of a special guarantee with respect to 
religious liberty, this charter employed the precise terms 
already used in the Connecticut charter as regards the 
political organization of the colony, and in the same way 
the colony is viewed primarily as a trading company with 
commercial rights, the political authority being an inci¬ 
dental element of the general corporate franchise. As in 
the case of Connecticut, the government of Rhode Island 
was framed upon the Massachusetts model, with a governor 
and deputy, a council of assistants, and a general court or 
assembly, with similar provisions regarding the organiza¬ 
tion and powers of these branches. It should be mentioned 
as a qualification of this statement, that the custom of 
representation which had grown up in Massachusetts since 


1 Poore’s Charters, I. 252. 


2 Poore's Charters, II. 1595. 


The Genesis of a Written Constitution. 553 

its first charter was given, and which had become adopted 
in the other New England colonies, was expressly recog¬ 
nized by the charters of Connecticut and Rhode Island, 
and was only formally sanctioned in Massachusetts in the 
subsequent charter of 1691. 

Thus, in all the colonies in New England, as in those of 
the South, there were established by the English sovereign, 
who alone possessed the supreme legal authority over 
the territory and inhabitants, constitutions embodied in 
written law, which defined the branches and functions of 
the government and guaranteed political and civil rights 
on the part of the subjects ; and the forms of government 
thus sanctioned were genetically related to those already 
existing in the trading company. 

The space remaining will not be sufficient to make more 
than a few summary statements regarding the origin of the 
constitutions established in the middle English colonies 
which were erected on the territory granted to the Duke 
of York in 1664. The general type of the colonial gov¬ 
ernment had then become so well defined, both in the 
South and in New England, that it was readily adopted in 
the middle colonies with no essential modifications. 

The facts which mark the growth of the colonial consti¬ 
tution of New York are: (1) The grant which was made 
to the Duke of York in 1664, and renewed in 1674, which 
gave to the proprietor full authority to make laws for the 
colony; 1 (2) the ordinance of the Duke of York, issued in 
1682, authorizing the governor to call an assembly, which 
was granted power to make laws for the general regulation 
of the state; 2 and (3) the constitutional enactments of 1683, 
made by the first New York assembly, which was formally 
called by the governor, as the duke’s representative, in 
answer to a popular petition for a government like that of 
the New England colonies. These enactments, under the 

1 Poore’s Charters, I. 783, 786. 

2 New York Colonial Documents, Vol. III. p. 331; also, Proceedings of the 
Legislative Council of New York, Hist. Intro. 


554 Annals of the American Academy. 

name of a “ charter of liberty,” vested the government in 
the hands of a governor, council, and representative assem¬ 
bly, with powers similar to those possessed by the corre¬ 
sponding branches in New England; and these enactments 
were approved, not only by the governor and the duke, but 
also by the king. 1 

The somewhat crooked line which marks the growth of 
the colonial constitution of New Jersey may be traced 
through the following facts : (i) The grant of the territory 
in 1664 to Berkeley and Carteret, with all the rights and 
powers of government; (2) the “concession^’ or constitu¬ 
tion of government granted in 1665 to the people by these 
proprietors; (3) the concession granted by Carteret in 
1676 to East Jersey, after the division of the province; 
(4) the constitution bestowed in 1681 upon West Jersey 
by the several joint proprietors who had acquired, by 
purchase, that portion of the province; and (5) the royal 
commission of 1702, which established a new government 
after the reunion of the two provinces into one. 2 In all 
these changes of authority, the form of government estab¬ 
lished by the above-mentioned laws, of whatever name, 
retained the general form which already prevailed in New 
England, which type was more consciously followed than 
that of the South, although there was no essential differ¬ 
ence between the political forms of the two sections. 

The constitution of Pennsylvania grew up as the result 
of: (1) the charter granted to William Penn in 1681, which 
gave the proprietor full legislative authority over the 
province; and (2) the “ frame of government,” so called, 
granted by Penn in 1682, which established a political 
organization similar in its outlines to those already de¬ 
scribed. This “ frame ” was renewed with slight modifi¬ 
cation in 1683 and also in 1696. These successive frames 
of government defined the several branches by provisions 
more minute than those found in any previous enactment 

1 New York Laws (old edition), Vol. II., Appendix, cited by Story. 

2 Grahame’s Colonial History, Vol. II. bk. 6. 


The Genesis of a Written Constitution. 555 

and which seem to anticipate in some respects the later 
constitutions. 1 For example, a greater dignity was given 
to the council by extending the period of its membership 
and by introducing into it the principle of elective rota¬ 
tion, like that afterward embodied in the United States 
Senate. An examination of the various constitutional 
enactments of the time will, I believe, convince one that 
no man of the early colonial period, notwithstanding the 
troubles of his later life, showed a greater degree of polit¬ 
ical sagacity or a higher genius for constructive statesman¬ 
ship than that shown by the Quaker proprietor of Pennsyl¬ 
vania. His constitutional laws, which were unquestionably 
the most original of his time, stand out in marked contrast 
to the impractical political devices of his contemporary, 
John Locke. They were based upon the simple constitu¬ 
tional forms already found to be of service in the other 
colonies, and were skilfully adjusted in detail to the actual 
condition, social and religious, of the people under his 
authority. 

With regard to Delaware it need simply be said that, 
although allowed a separate assembly, it retained the same 
governor as Pennsylvania, and was considered under the 
same constitution as that province until the Revolution. 

As the middle colonies adhered closely to the New Eng¬ 
land model, and as the political forms of New England 
were derived from the same source as those of the South, 
we consequently find one general type prevailing through¬ 
out all the English colonies in America. This general 
type was, as we have seen, characterized by three essential 
features : (1) a governor, with a deputy-governor, who pos¬ 
sessed chief executive authority; (2) a council of magis¬ 
trates, which acted as an advisory body to the governor, and 
which in connection with the governor exercised judicial 
functions; (3) an assembly of freemen, either primary or 
representative, which in connection with the governor and 


1 Poore’s Charters, II. 1509, etseq. 


556 Annals of the American Academy. 

council possessed the powers of legislation. The subse¬ 
quent political changes, which resulted in the modifications 
of this primitive type and which were embodied in the 
later state constitutions, and the extent to which these 
changes were due to English influences, have been as far 
as possible excluded from this discussion. 

The first point which I have tried to illustrate in this 
rapid sketch of the genesis of the American colonial con¬ 
stitutions is the fact that the original frame of government 
which they established was, in no proper sense, patterned 
after the structural features of the English government; 
but that it was merely a reproduction or continuation of 
the government established by charter for the colonial 
trading companies, as seen in the East India Company 
and in the London Company under its third charter, and 
in the Massachusetts Bay Company. 

The second and more important point which I have sought 
to emphasize is the fact that the colonial constitutions, the 
establishment of which marks the first stage in the growth 
of American constitutional law, were developed, not as the 
result of custom, but as the product of statutory legisla¬ 
tion. The political organization of every colony was sanc¬ 
tioned by a written constitution. The fact that these con¬ 
stitutions were not enacted by the people in no way inval¬ 
idates their character as constitutional law. It was only 
by the Revolution that the sovereign authority of the 
people was recognized. Previous to that event the only 
ultimate source of legal authority within the English 
dominions was the king and Parliament. Every enact¬ 
ment, whether relating to the public weal or to private 
interests, which could properly have the character of posi¬ 
tive law, must be established, either directly or indirectly, 
by the sovereign power of the English nation. It is this 
very fact, namely, that the colonies, like their prototypes, 
the trading companies, were not independent communities, 
but subordinate corporate bodies, which explains the reason 
why in every case written laws were necessary to define 


The Genesis of a Written Constitution. 557 

their special privileges and franchise. Not organized under 
any general law each must derive its powers from an ex¬ 
press charter, or written grant. Every power which the 
trading company could exercise must be derived from the 
express terms of its charter, which was the instrument of 
its creation. In the same way, the colony, whether organ¬ 
ized directly under a charter, like Massachusetts, or indi¬ 
rectly under a company having chartered powers, like 
Virginia, could exercise only those functions which were 
defined by the terms of an express grant.J! 

This conception of the colony, as a subordinate body- 
politic, derived from or allied to the trading company, 
capable of assuming powers and privileges only so far as 
delegated by an express grant, explains the origin of the 
written constitutions which prevailed in all the American 
colonies. And the fact that the colonists themselves 
recognized their constitutional grants as the exclusive 
source of their political powers and privileges also explains 
the tenacity with which they clung to their charters, and 
the almost sacred veneration with which they cherished 
their written constitutional laws. The worship of a writ¬ 
ten constitution, which has sometimes been satirized as a 
sentiment peculiar to the American people, has its expla¬ 
nation in the fact that the genesis and growth of political 
liberty in this country, whether considered in the early 
colonial period which we have described, or in the later 
^ national period, have taken place in great measure within 
what may be called the sphere of written law. 

William C. Morey. 

University of Rochester. 



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